https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2205

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT IN NAIROBI** **JUDICIAL REVIEW APPLICATION NO. E047 OF 2026** **REPUBLIC APPLICANT** *VERSUS* **PUBLIC SERVICE COMMISSION 1ST RESPONDENT** **NAIROBI CITY COUNTY PUBLIC SERVICE BOARD 2ND RESPONDENT** **NAIROBI CITY COUNTY GOVERNMENT 3RD RESPONDENT** **AND** **MOSES KIPRONO LANGAT EX PARTE APPLICANT** **RULING** The ex parte applicant, acting in person, filed these proceedings, including his application dated 18 May 2026. The substantive order sought therein includes: 1. *Spent.* 2. *Pending the hearing and determination of this petition, a conservatory order is issued suspending the implementation, enforcement and/or effect of the decision of the 1st respondent dated 19 November 2025.* 3. *That pending hearing and determination of this petition, the 1st respondent be ordered to preserve and secure all records, proceedings, minutes, internal memoranda, written submissions, correspondence and documents relating to the petitioner's request for review.* 4. *The 1st respondent be directed to supply to the court and to the petitioner within 14 days:* 5. *The proceedings, reasons and records underlying the PSC correspondence dated 9 December 2020.* 6. *The written submissions dated 8 September 2025 filed by the 2nd respondent.* 7. *All supporting documents relied upon in making the decision dated 19 November 2025.* 8. *Upon disclosure of the above records, the petitioner is at liberty to file a further supplementary affidavit and/or written submissions.* 9. *Costs be in the cause.* The *ex parte* applicant supported his application through his affidavit and on the grounds that he filed a request for review before the Public Service Commission, the 1st respondent (PSC), from a recruitment dispute and position of payroll manager. The PSC acknowledged the request and, on 5 August 2025, directed the parties to file and serve written submissions. He complied by filing on 4 September 2025. The 2nd respondent filed submissions on 8 September 2025 but failed to serve the *ex parte* applicant. The *ex parte* applicant avers that, despite the procedural lapse, the PSC proceeded to determine the matter and dismissed the application for review on 19 November 2025. This violated Article 35 of the Constitution by denying adverse material and a fair hearing under Article 50 of the Constitution. The ex parte applicant thus asserts that the PSC's decision is unconstitutional and unlawful. Through the PSC letter dated 9 December 2020, the matter was referred to the Ethics and Anti-Corruption Commission (EACC). This did not amount to a final determination of the ex parte applicant's complaint. By admitting the review application in 2025, the PSC reopened the matter, and the non-disclosure of information is not justified. By letter dated 20 January 2026, the petitioner requested the proceedings, reasons, and records relied upon in the PSC's decision. Such has not been supplied, leading to these proceedings, and the orders sought should be allowed. The *ex parte* applicant filed his Supplementary Affidavit and averred that he attached several letters from the PSC dated 19 November and 16 December 2025 regarding his application for review. He also attached his letter dated 5 January 2026, a follow-up and a request for reasons for his review application. The *ex parte* applicant also filed his **Addendum and Notice of Clarification** on parties, stating that the 3rd respondent is included in these proceedings as a necessary party, being the employer entity responsible for implementing county public service and payroll administration matters. The reliefs sought in these proceedings will directly affect the 3rd respondent, hence the joinder. In reply, the 1st respondent, PSC, filed Grounds of Opposition that the substratum of the application is a recruitment exercise carried out by the 2nd respondent in 2014. The matter is statutorily barred as per section 89 of the Employment Act. The inordinate and unexplained delay in ventilating the matters underlying this application offends the principles that Judicial Review is a remedy of promptness and the ex parte applicant cannot sleep over his rights for over a decade, and then invoke this jurisdiction. The PSC lacked jurisdiction to hear the ex parte applicant's application for review because it was time-barred under section 88(2) of the Public Service Commission (County Appeals Procedures) Regulations 2022. Further grounds of opposition are that the application herein is an abuse of process and there are no practical reliefs the court can grant which would have any real consequence on the recruitment carried out by the 2nd respondent in 2014. To these Grounds of Opposition, the *ex parte* applicant filed his reply and asserts that the question of limitation does not apply in his case, since the PSC decided on 19 November 2025, thereby reopening the matter. His petition challenges the legality, procedural fairness, and constitutional validity of the PSC decision dated 19 November 2025, including the process leading up to it. The PSC has mischaracterised these proceedings. The request for review before the PSC was made per the PSC regulations, and in these proceedings he seeks reasons for the dismissal of his application for review. The alleged delay in filing the review application arose because the question of limitation does not apply in his case, as the PSC decided on 19 November 2025, thereby reopening the matter. The applicant was pursuing administrative remedies and the prolonged institutional inaction and the continuing legal consequences from the challenged decision. The *ex parte* applicant avers that the alleged abuse of court process is incorrect and that there is no evidence to support it. These Grounds of Opposition cannot terminate these proceedings, and the orders seeking disclosure should be allowed. The 2nd respondent filed the Replying Affidavit of Violet Oyugi, the acting CEO, and averred that the ex parte applicant challenges a recruitment process undertaken by the 2nd respondent many years ago, the outcome of which was concluded and implemented. In 2013, the 2nd respondent advertised the position of payroll manager, and the ex parte applicant participated but was not successful. He took no legal action by challenging the recruitment process within a reasonable time. The application challenging the recruitment process that concluded 12 years ago is inordinate, highly prejudicial, and contrary to the principles of finality in administrative and employment matters. Ms Oyugi avers that, due to effluxion of time, officers involved in the recruitment process may no longer be in office, records may have changed hands, and persons affected by the recruitment exercise have long since accrued rights and legitimate expectations. There is no credible or lawful explanation for the inordinate delay in seeking redress. The doctrine of laches defeats the petition herein and constitutes an abuse of the court's constitutional jurisdiction. The petitioner improperly seeks to transform an ordinary recruitment grievance into a constitutional petition without demonstrating any actual violation of the Constitution. The allegations made herein are speculative, argumentative and unsupported by admissible evidence. This is not a proper petition and should be dismissed with costs. The 1st respondent PSC has since considered the application for review and rendered a decision. There is no case in which such a decision is irrational or unreasonable. The application before the PSC was found time-barred. Under the law, the PSC had no jurisdiction to proceed with a time-barred claim. The *ex parte* applicant filed his *Rebuttal to the 2nd Respondent's Replying Affidavit and Grounds of Opposition, and avers that the 2nd Respondent has mischaracterised the facts by treating two separate recruitment processes as* the same. There were two recruitment cycles for the payroll manager position. In the 2013 recruitment process, CPA Daniel Kibet Kiptala was appointed. In the 2014 recruitment process, the ex parte applicant participated, and the Chief Officer informed him that he was the successful candidate. The 2nd respondent thus does not refer to the 2014 recruitment process but to the 2013 one. The replying Affidavit of Ms Oyugi is misleading. The petition challenges the respondents’ administrative actions and omissions arising from the 2014 recruitment process, including the continued withholding of the complete administrative record, the failure to furnish reasons for the administrative action, and the denial of procedural fairness as guaranteed under Articles 35 and 47 of the Constitution. The 2nd respondent has not produced the interview proceedings, score sheets, recommendation minutes, appointment records, board resolutions, or other administrative records relating to the 2014 recruitment process, despite being the statutory custodian of such records. The orders sought should be issued. **Determination** The *ex parte* applicant filed these proceedings under the mandate of Judicial Review. He, however, filed various Affidavits and responses thereof under the title of *Petitioner.* The purpose of Judicial Review proceedings is to provide the court with judicial oversight of administrative actions for lawfulness, focusing on procedure rather than merit. In **Republic v Office of the Director of Public Prosecutions & 3 others; Mehment (Ex parte) [2026] KEHC 8724 (KLR)**, the court held that in judicial review proceedings, Rationality and reasonableness go together. Therefore, whereas the court may review administrative actions for lawfulness, the rationality and reasonableness of such actions may, where necessary, come into perspective. In [**Republic v Commissioner of Customs and Border Control; Okoiti (Ex parte Applicant) [2026] KEELRC 1771 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1771/eng%402026-06-29)**,** the court emphasised that traditionally, the purpose of Judicial Review proceedings was designed as an oversight judicial process by the court on administrative actions for the lawfulness, which focuses on procedure and not merit, as held in **Wandaka & 2 others v Director, Directorate of Criminal Investigations. & another; Muiruri (Interested Party) [2026] KEHC 5861 (KLR).** At the core of these proceedings is the dismissal of the ex parte applicant's review application to the PSC on 19 November 2025. The reasons for the dismissal were that the PSC found the application for review time-barred. The *ex parte* applicant's case is that he filed an application for review with the PSC, and on 5 August 2025, directions were issued to file written submissions. He filed his written submissions on 4 September 2025, and the 2nd respondent filed on 8 September 2025, but the submissions were not served to enable a reply, thereby denying a fair hearing. He seeks to be supplied with the records leading to the dismissal of his review application. The *ex parte* applicant admitted that in 2013, he applied for the position of payroll manager with the 2nd respondent and was successful. However, the position was given to a third party, CPA Daniel Kibet Kiptala. He applied in 2014; the Chief Officer advised him that he was successful, but the 2nd respondent has refused to issue the necessary letter of appointment. The *ex parte* applicant asserts that he was not able to challenge the recruitment since he was following administrative remedies; in the *Petitioner’s Reply to the 1st Respondent Grounds of Opposition,* at paragraph (4), he avers that: *The allegations of delay ignore the petitioner’s continued pursuit of administrative remedies, prolonged institutional inaction, and the continuing legal consequences of the impugned decision.* To begin with, the *ex parte* applicant has not produced any letter of employment from the 2nd respondent regarding the alleged recruitment in 2013 or 2014. The assertion that the Chief Officer informed him he was the successful candidate is unsupported by any evidence other than that assertion. The *ex parte* applicant has also admitted that following the 2013 recruitment process, CPA Daniel Kibet Kiptala was appointed to the position of Payroll Manager by the 2nd respondent. Thus, in the subsequent recruitment process in 2014, in which the ex parte applicant participated, there is no evidence that he was the successful candidate, whether in any written offer or letter of appointment. Additionally, aggrieved by the decision of the 2nd respondent in 2013 or 2014, under Section 88(2) of the Public Service Commission Act and Regulation 24 thereof, the *ex parte* applicant had 6 months to file his application for review with the PSC: ***(2) an application for review under subsection (4) shall be in writing and made within six months from the date of the decision.*** The ex parte applicant asserted that he took time to file his application for review with the PSC due to the continued pursuit of administrative remedies, prolonged institutional inaction, and the ongoing legal consequences of the impugned decision, which caused him to lose crucial time to do so. The provisions of section 88(2) of the Public Service Commission Act are mandatory. An application for review is only allowed within 6 months. Furthermore, the provisions of section 88(2) of the Public Service Commission Act and Regulation 24 thereof must be read together with section 89 of the Employment Act. Although the ex parte applicant moved the court through a Judicial Review application or, in a case of a petition, being a claim premised on recruitment into employment in 2014, aggrieved, he had 6 months to move the PSC. He had 3 years to move the court. Indeed, as submitted by the 2nd respondent, a time period of over 10 years is an inordinate delay. An employer is allowed under section 10(6) and (7) of the Employment Act and section 74 thereof to keep work records for only 5 years. Therefore, within the timeline of 3 years under section 89 of the Employment Act that allows the ex parte applicant to move the court, the employer, possible employer or, as the case may be, in an employment dispute, the employer is allowed 5 years only to keep work records. It is therefore a reasonable and fair assessment that, for over 10 years, the respondents have not had the records regarding the recruitment process undertaken in 2013 or 2014, for which the ex parte applicant demands to be supplied with the records in exercise of his right under Article 35 of the Constitution. The legal mandate allowing custody of such records has since lapsed. The decision by the PSC dismissing the application for review in view of section 88 (2) of the Public Service Commission Act and Regulation 24, therefore, is lawful, reasonable and rational. A party with a time-barred application before the PSC leave it without jurisdiction. It should put down its tools; further explanation is unnecessary. The delay in the ex parte application moving the court cannot be sanitised through a Judicial Review Application as herein done. His case cannot be revived in these proceedings because the PSC correctly found that the review application before it was time-barred. Such a reason was communicated on 19 November 2025. Continued insistence that the 2nd respondent should appoint the ex parte applicant as the payroll manager following the recruitment process undertaken in 2013 or 2014 is equally time-barred under section 89 of the Employment Act. The ex parte applicant's insistence that the respondents owed him employment and that his rights under the Constitution have been violated is a question of fact that should have been addressed with the provisions of the Public Service Commission Act or the Employment Act. A time-barred case cannot be revived by being given records that the employer is not lawfully entitled to have custody of in terms of section 10(6) and (7) of the Employment Act. This then amounts to abuse of the court process. The agitation of this case to review a recruitment process that closed in 2014 cannot be characterised as anything other than an abuse of court process. **According to the application dated 18 May 2026, it is without merit and is hereby dismissed. The ex parte applicant is abusing the court process and shall pay costs to each respondent in the amount of Ksh. 25,000 within 14 days, failure to which, such shall be taxed using the scale and shall accrue interest at court rate until paid in full.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**